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Government to introduce legislation to allow for online surveillance

Justice Minister Frances Fitzgerald has won Cabinet approval for the introduction of laws that would see the extension of law enforcement powers in relation to online surveillance.

As it stands, bodies such as An Garda Síochána, the Defence Forces and Revenue must seek a ministerial order to intercept phone communications but have only limited power in relation to online communication surveillance. The introduction of new laws, which are due to be published shortly, would allow for an extension of this power to include monitoring of encrypted communication services, emails and web usage.

A spokesman for the Department of Justice has stated the proposals will be brought forward in close consultation with the Attorney General and ‘other stakeholders’, with the Law Reform Commission (LRC) being tasked with examining the legal issues in relation to the right of the State to access these data and the citizen's right to privacy. It is likely that these proposals will be implemented before the LRC has conducted its review. The main argument put forward in favour of the introduction of legislation is that it is essential to the combatting of organised crime and terrorism.

The proposals have not, thus far, received a warm welcome. Digital Rights Ireland, the organisation responsible for bringing the case that ultimately resulted in the striking down by the Court of Justice of the European Union (CJEU) of the EU Directive on Data Retention in 2014, has criticised the way in which the Government has gone about introducing these proposals. Digital Rights Ireland has stated that a review of the surrounding issues and the legal implications should be carried out before the publishing of any legislation and not after as is currently proposed.

Without appropriate safeguards, as we have learned from recent CJEU cases, any enacted legislation would be in danger of being in contravention of both the Irish Constitution and the European Charter of Fundamental Rights.